Plaintiffs seek doctor’s letter responding to complaint alleging negligent care of late patient
The Ontario Superior Court said it would have denied a motion to disclose a doctor’s letter sent to the College of Physicians and Surgeons of Ontario (CPSO) in response to a complaint regarding his care and treatment of a deceased patient.
In Miller v. Noel, 2026 ONSC 1118, the plaintiffs included the patient’s estate. The patient visited the emergency department of a hospital in Goderich, Ontario, on Jan. 24, 2015. After his discharge, he was found dead in his home on Feb. 3, 2015.
In a notice of action issued on Feb. 2, 2017, the plaintiffs asserted negligence in the doctor’s care and treatment of the patient. On May 15, 2019, they asked the CPSO for a copy of the plaintiff’s Nov. 9, 2015 letter responding to the complaint.
The CPSO refused the request based on the letter’s inadmissibility under s. 36(3) of Ontario’s Regulated Health Professions Act, 1991 (RHPA). The plaintiffs set down the action for trial on Feb. 2, 2022.
In November 2023, the plaintiffs’ counsel again unsuccessfully requested the letter from the CPSO. On the first trial date that month, the parties were ready to proceed to trial, but the matter was not reached.
On Oct. 16, 2025, the plaintiffs’ counsel again asked for the letter, and the CPSO once more declined for the same reason it had given in May 2019. On the second trial date in August 2025, the court adjourned the trial due to the departure of the plaintiffs’ counsel.
The plaintiffs asked the doctor for the letter on Dec. 2, 2025, the eve of the third trial date, nearly four years after setting down the action for trial and nine years after initiating the action. Echoing the CPSO, the doctor claimed that the letter was inadmissible under s. 36(3) of the RHPA.
The court scheduled the next trial date for this Mar. 30. The plaintiffs moved to compel the doctor to serve a further and better affidavit of documents disclosing and producing the CPSO response letter. The plaintiffs also requested leave to bring the motion.
The plaintiffs acknowledged that the letter was a report, document, or thing prepared for an RHPA proceeding under s. 36(3) of the RHPA, meaning that it would have been inadmissible in a civil proceeding. However, they alleged that the goal of s. 36(3) was not to shield parties from cross-examination on prior inconsistent statements made during disciplinary hearings.
The plaintiffs also argued that they did not require leave because their motion for a further and better affidavit of documents fell under r. 48.04(2)(b)(i) of the Rules of the Rules of Civil Procedure, RRO 1990, Reg 194.
Leave to file motion denied
The Ontario Superior Court of Justice denied the plaintiff’s request for leave to bring the motion for a further and better affidavit of documents.
First, the court ruled that the plaintiffs’ motion required leave because it did not fall under the exceptions listed in r. 48.04. The court pointed out that they should have brought their motion before setting down the action for trial.
The court noted that the plaintiffs could have discovered the documents requested, which were in the doctor’s possession. The court explained that they engaged in discovery by challenging the sufficiency of the doctor’s affidavit of documents based on the omission of a relevant document.
The court held that the plaintiffs failed to:
- establish a substantial or unexpected change in circumstances
- provide evidence that they considered the CPSO response letter a centrally important document or a potentially critical document to test the doctor’s credibility
- show that granting leave was necessary in the broader interests of justice
- plausibly explain their delay in filing the motion, apart from the change in their co-counsel
The court noted that the plaintiffs had known of the letter’s existence since spring 2016 and that their new counsel had participated in the proceeding since the first request for the letter in May 2019.
Lastly, even if it granted leave, the court would have dismissed the motion for a further and better affidavit of documents. The court would have found the letter, along with the other CPSO documents included in the affidavit on the motion, inadmissible in this civil proceeding as s. 36(3) RHPA documents.
